The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2014

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003), as amended, (“the 2006 Regulations”) in order to amend the transposition in the United Kingdom of Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ No. L 158, 30.4.04, p77) (“Directive 2004/38/EC”).

The amendments made by these Regulations provide that appeals against decisions taken under the 2006 Regulations to deport a person from the United Kingdom, when brought from within the United Kingdom, no longer have the effect of suspending enforcement of the removal decision. This reflects Article 31(4) of Directive 2004/38/EC, which permits member States to exclude an individual from their territory pending the appeals process.

Paragraph 7 of the Schedule to the Regulations (“the Schedule”) amends regulation 29 of the 2006 Regulations to prevent appeals against deportation decisions from having the effect of preventing the giving of, or execution of, removal directions.

Paragraph 6 of the Schedule inserts a new regulation 24AA into the 2006 Regulations. This provision is based on section 94B of the Nationality, Immigration and Asylum Act 2002 (c. 41), as inserted by section 17(3) of the Immigration Act 2014 (c. 22). It also reflects the requirements of Article 31(2) of Directive 2004/38/EC. It provides that where a person has not appealed against a deportation decision made under regulation 24(3) of the 2006 Regulations, but would be able to do so at that time from within the United Kingdom, or has appealed but the appeal has not been finally determined, the Secretary of State may only give directions for the removal of that person from the United Kingdom if the Secretary of State certifies that the person’s removal would not be unlawful under section 6 of the Human Rights Act 1998 (c. 42). Section 6 of that Act provides that it is unlawful for a public authority to act in a way which is incompatible with a right under the European Convention on Human Rights. Paragraph (3) of the new regulation 24AA provides that, in particular, the grounds upon which the Secretary of State may certify that a removal would not breach section 6 of the Human Rights Act include that the person concerned would not face a real risk of serious irreversible harm in the country or territory to which they are to be removed. Paragraph (4) of the new regulation 24AA provides that where a person applies to the appropriate court or tribunal for an interim order to suspend enforcement of the removal decision, their removal may not take place until such time as the decision on the interim order has been taken by the court or tribunal in question. Paragraph (4) lists certain exemptions to this principle, taken directly from Article 31(2) of Directive 2004/38/EC.

Paragraph 8 of the Schedule inserts a new regulation 29AA into the 2006 Regulations to enable those removed from the United Kingdom before their appeal is heard or finally determined to apply for permission to be temporarily admitted to the United Kingdom in order to present their case in person. This is a requirement of Article 31(4) of Directive 2004/38/EC. The new regulation 29AA applies the temporary admission powers contained in paragraphs 21 to 24 of Schedule 2 to the Immigration Act 1971 (c. 77).

Paragraph (5) of the new regulation 29AA provides that once a person has been temporarily admitted to submit their case in person, they may be removed from the United Kingdom once they have submitted their case in person. Should the person concerned need to return to the United Kingdom in order to submit their case in person on a future occasion (for example, in an appeal to the Upper Tribunal), it will be possible for that person to apply for temporary admission to return to the United Kingdom for that purpose.

Paragraph 2 of the Schedule clarifies regulation 11 of the 2006 Regulations (right of admission to the United Kingdom) does not apply where a person is subject to a deportation or exclusion order made under the 2006 Regulations.

The remainder of these Regulations makes minor and consequential amendments.

An impact assessment has not been produced for these Regulations as no impact on businesses, charities, voluntary bodies or the public sector is foreseen.